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[2014] ZAGPJHC 419
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Ujdur v Road Accident Fund (24941/13) [2014] ZAGPJHC 419 (16 October 2014)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 24941/13
DATE: 16 OCTOBER 2014
In the matter between:
UJDUR: FERDINAND
PETRUS
..............................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGEMENT
CARSTENSEN AJ:
1. In this action, the Plaintiff
instituted a personal injury claim against the Road Accident Fund for
past hospital and medical
expenses, future hospital and medical
expenses and related expenses, including past loss of earnings,
future loss of earnings and
general damages.
2. It was common cause that:
2.1. The collision occurred on the 16th
of October 2010 at approximately 21h18 on Voortrekker Street,
Daleview, Brakpan.
2.2. At that time, the Plaintiff was a
minor and a passenger in the motor vehicle bearing registration
letters and numbers [V………]
driven by his father,
J Ujdur, the insured driver.
2.3. They were involved in a collision
with the motor vehicle bearing registration letters and numbers
[B……..] driven
by E. Greyvenstein.
2.4. The Plaintiff has since become a
major and by consent between the parties, I granted an amendment to
reflect Ferdinand Petrus
Ujdur as the Plaintiff, an adult male and
consequential amendments to the particulars in paragraph 1. I also,
by consent between
the parties, granted an amendment for the capital
amount claimed by the Plaintiff from R1.8 million to R4.8 million.
3. The question of liability was
conceded by the Defendant.
3.1. The parties agreed that no
apportionment was relevant and that general damages should be awarded
in the amount of R250 000.00.
3.2. The Defendant had also given the
usual statutory undertaking in respect of future medical and hospital
expenses.
3.3. It was agreed that:
3.3.1. the Plaintiff suffered:
3.3.1.1. a laceration wound above the
left knee with injury to the patella ligament;
3.3.1.2. a laceration wound to the left
tibia nerve and extensor tendon;
3.3.1.3. as a result of the injuries
the Plaintiff was hospitalised to have medical treatment, suffered
pain, loss of amenities
of life and was severely disabled;
3.3.2. the joint minutes of the experts
could be admitted into evidence as far as the experts were in
agreement;
3.3.3. the expert report of Naidoo
contained in bundle C, pages 1 – 10, could be admitted in to
evidence;
3.3.4. had it not been for the
accident, the Plaintiff would have become an artisan, in particular a
welder or boiler maker;
3.3.5. the Plaintiff was currently in
grade 12 at school.
4. The issues which then remained to be
determined at the trial related to past loss of earnings, past
medical expenses and future
loss of earnings which included the
questions of contingencies, pre-injury and post-injury, retirement
age and the nature and extent
of the loss of earnings.
5. At the outset, I will deal with the
issue of past medical expenses.
5.1. During the course of the trial, in
respect of the past medical expenses the Plaintiff handed up an
account from Life Glynnwood
Hospital in the amount of R20 545.86.
5.2. The Defendant’s counsel
advised that she had no instructions to accept same.
5.3. However, in light of the agreement
between the parties regarding the status of the documents in the
bundle, and the fact that
this document was in the bundle and was
discovered, this I can’t accept the Defendant’s
submission that counsel has
“no instructions”.
5.4. The account is clearly an account
from the hospital in respect of the Plaintiff’s hospitalisation
and medical expenses
in a total amount of R20 545.86.
5.5. In the result, I am of the view
that the Plaintiff is entitled to past medical expenses in this
amount.
6. The Plaintiff firstly led the
evidence of Eleanor Bubb, a clinical and educational psychologist,
who confirmed both the contents
of her report and the agreements
reached in the joint minutes. Her expertise were conceded by the
Defendant.
6.1. She stated that prior to the
accident, the Plaintiff was of average intelligence, was coping at
school although he did have
learning difficulties and that he was now
a 19 year old in grade 12. She stated that he would have probably
obtained a grade 12
and been able to study further in a technical
field at an FET College to pursue his career as an artisan, welder or
boilermaker.
Dr Prag, in the joint minute, although he did not give
evidence, agreed that the Plaintiff would have followed a more
artisan
/ skills course at college to acquire skills to enhance his
career potential.
6.2. Regarding his post-accident
functioning, Mrs Bubb stated that he would probably obtain a low
level grade 12 and that the accident
had exacerbated his learning
difficulties. As a result of the trauma of the accident, the pain,
the depression and PTSD symptoms
that he now would probably not cope
in an FET College, and would be limited to the type of work he is
able to do because of his
orthopaedic injuries.
6.3. He would not cope with office
routine, or with the studies of a more academic nature such as an
architect. He would now require
greater structure, routine and
supervision in the workplace than pre-accident, but could do “on
the job” training.
6.4. Prag did refer to the orthopaedic
and occupational therapist’s report regarding the limitations
in the Plaintiff’s
career field due to the injuries sustained
and agreed that, to become an architect was unrealistic,
post-accident.
6.5. Mrs Bubb gave unbiased, fair and
impressive evidence stating that as a consequence of the accident,
the Plaintiff suffered
depression, pain, trauma and PTSD, was
frustrated, irritable, had a lack of interest in any career, a lack
of concentration, memory
loss and feared he would hurt himself. He
did not want to study or talk about the accident. He had persistent
pain in his knee
which compounded his frustration, depression, lack
of concentration. In fact, it appeared that this pain was chronic,
affecting
his ability to learn.
6.6. Bubb stated that he no longer had
the capacity to sit down and work and if he wanted to study further,
his lack of motivation
would be an obstacle.
6.7. She stated that she could not
accept the recommendation of the Defendant’s industrial
psychologist, Henry Van Blerk,
who recommended that the Plaintiff
could qualify as a draftsman. She felt that this would be prevented
by the fact that it was
a higher academic career path than an
artisan, that he would battle to interpret instructions, that his
maths was poor, that he
had a low self-motivation and that the career
required organisation and structural skills, which he did not have.
6.8. She doubted, greatly, whether he
would be able to get the qualification and was of the view that he
would not have even been
able to achieve this qualification before
the accident.
6.9. She stated further that for him to
study further at an FET College, he would now struggle to cope unless
the neuro-physiological
defects relating to the trauma were dealt
with in psychotherapy. The problem was that he was reluctant to go
to therapy, and thus
he was unlikely to be compliant with any such
therapy.
6.10. Bubb also felt that he would not
cope with an office routine or an office bound job, but he could
still cope with being an
artisan. He would certainly qualify to be
admitted to an FET College.
6.11. During cross-examination, Bubb
conceded that prior to the accident he had difficulty with his peers
and authority figures
and he had fluctuating school results. He took
a cocktail of pills for his exams, but she remained convinced that he
would have
completed grade 12 and successfully qualified from an FET
College.
6.12. One must also appreciate that at
the time of the accident, he was 15 years old and that in itself, in
my view, as confirmed
by Bubb, would affect his concentration, view
of authority figures and fluctuating marks.
6.13. Bubb also reiterated that because
of the neuro-physiological consequence of the accident, the pain,
trauma, depression and
PTSD he would now no longer cope. She was
firm in her view that what he could have achieved prior to the
accident, he can no longer
achieve. In addition, his reluctance to
attend therapy was a direct consequence of the neuro-physiological
difficulties caused
by the accident, the pain, PTSD, trauma and the
depression, all of which affect the brain functioning.
6.14. The suggestion by the Defendant
that as a consequence of the accident he can achieve a higher level
qualification (as a draftsman)
than what he could have achieved
before the accident is, in my view, fanciful.
7. Plaintiff thereafter led the
evidence of Lisa Roets, industrial psychologist, who confirmed her
report and also the agreements
in the joint minute between herself
and the Defendant’s industrial psychologist, Van Blerk.
7.1. In the joint minutes, they agreed
that the Plaintiff would have completed his grade 12 qualification
and followed a technically
inclined career as a qualified artisan.
7.2. Roets stated, in the joint minute,
that the Plaintiff could have secured work in the corporate sector of
the labour market,
but Van Blerk contended, as he did in evidence,
that the Plaintiff was more likely to find work in the non-corporate
or informal
sector of the labour market.
7.3. It was also common cause between
the parties that subsequent to the accident, the Plaintiff would
probably fail grade 12 as
his term 2 average was 36%, whereas his
term 1 average was 53%.
7.4. The difference was explained in
that in term 1 no written examinations were conducted, but practical
testing had been conducted
and the Plaintiff coped far better with
practical aspects, than with the academic aspects of his education.
7.5. Roets confirmed that before the
accident his aptitude was technically orientated and concluded that
he would have probably
concluded grade 12 at his current high school
and would have followed a technically inclined career path such as an
artisan and
that it was reasonable to accept his interests in
becoming a welder or boilermaker for quantification purposes.
7.6. On completion of matric, she was
of the opinion that the Plaintiff would have worked in a temporary or
contract position for
a period of 2 years while seeking
apprenticeship, during this time he would have earned R2000.00 to
R3000.00 per month. Thereafter,
he would have been required to
complete a 3 year apprenticeship and on the PE Corporate Services
survey, would have earned the
median of the salary scales for
apprentice 1, apprentice 2 and apprentice 3 to quantify his loss of
earnings for that time.
7.7. Following the completion of his
apprenticeship, he would have pursued a career as an artisan and she
used the earnings of welder
makers and boilers as benchmark for his
earning potential. She stated he would have started on the lower
quartile of these scales
and progressed following a straight line
approach to reach the upper quartile by the age of 45. That would
have represented the
ceiling of his earning potential. She also
recommended that the average of the scales for welders and
boilermakers be used for
the calculations.
7.8. She stated that before the
accident, he was in good health and would probably have been able to
work until the retirement age
of 65.
7.9. Roets took into account that as a
consequence of the accident:
7.9.1. he ruptured the anterior
cruciate ligament of his right knee;
7.9.2. sustained a deep laceration of
the dorsum of the left foot;
7.9.3. demonstrates extreme poor gait;
7.9.4. will develop osteoarthritis in
the right knee by the age of 40 years which would require a total
knee replacement within
10 years to the onset of arthritis, may
require revision procedure within 15 to 20 years;
7.9.5. has been left with psychiatric
and emotional difficulties and has been diagnosed with major
depressive disorder;
7.9.6. as a result of his
neuro-physical functioning, his overall ability fell within the
average range, however, she accepted Bubb’s
report that with
regard to her conclusions relating to his difficulties in respect of
attention, working memory, receptive and
expressive language, motor
speed, physio-constructual skills, abstract reasoning, self
monitoring, the ability to structure and
organise work and the
ability to inhibit response. Also that his pre-existing learning
difficulties had been exacerbated by the
trauma of the accident, the
pain and the PTSD and that all of these would result in an obstacle
to his educational prospects.
7.10. It was common cause that post the
accident the Plaintiff would be suited for light work only, and would
not cope with his
original career path as a welder or boilermaker.
7.11. There was also no suggestion that
an underwater welder was ever a reasonable career path. She accepted
that he was unlikely
to cope with further tertiary studies and has
been left with residual neuro-physiological, psychiatric, emotional
and behavioural
difficulties and that he is not considered to be
suitable for work in an office environment, but will require
structure, routine
and supervision.
7.12. She stated that he will not
fulfil his premorbid potential in terms of careers or earnings and at
best, with the application
of a higher than usual post-morbid
contingency deduction, he may be able to secure work in a basic
straight forward position, within
the sedentary to light work
category.
7.13. She also gave evidence that he
has suffered a one year delay in entering the labour market and that
with a low level matric,
he would probably be able to secure
employment in the informal sector of the labour market in an
unskilled capacity for three to
five years, earning between the lower
quartile and median earnings in the informal sector, and then
progressing to approximately
median earnings.
7.14. Thereafter, he could secure
employment as an unskilled worker in the non-corporate sector,
earning an income slightly higher
than a median unskilled worker and
progress within 5 years to the median and upper quartile earnings of
unskilled workers.
7.15. She felt he may progress to a
semi-skilled worker earning between the median and upper quartile of
semi-skilled workers, but
that his ceiling would be the average
between a median and upper quartile for semi-skilled workers in
non-corporate sector, at
the age of 50 years.
7.16. During cross examination, Roets
explained that the PE Corporate survey, on which she relied, was not
only in respect of listed
companies, but included companies between 1
and 50 employees. 17% of companies surveyed were public listed
companies, 50% were
private companies, 8% were in the public sector.
7.17. She also disagreed with the
suggestion of Van Blerk that the Plaintiff could become a draftsman
due to his lack of maths and
science, in fact she stated although one
does not have to excel to become artisan, as one could go to the FET
College with a grade
9, attend to the practical component during
onsite training, the theoretical component consists of only 12 weeks
a year in college.
Consequently, he would have easily coped with
that prior to the collision.
7.18. The scarcity of welders and
boilermakers would ensure that had he qualified, he would have
obtained a well-paying job and
in fact, it was common cause between
the parties, that he would have been a boilermaker or welder.
7.19. She confirmed that he would have
met the entry requirements for a trade college and his parents would
have been in a position
to support him in obtaining the
qualification. She confirmed that welders and boilermakers were
listed in the top 100 scarce skills
occupation and consequently,
there is no doubt in her mind that he would have been accepted into
the trade and would have been
sought after, even taking into account
that he was a white male.
7.20. She stated that she had no doubt
that he would have been able to get into a trade, despite the
recorded learning difficulties,
political climate, difficulty with
authority, youth unemployment and a strong indication of this was
that he had chosen a technical
high school and had chosen not to
follow an academic path.
7.21. She had no doubt that he would
have found employment in the corporate sector.
7.22. During cross examination, she
also confirmed that he now would have to find employment of a light
sedentary nature, of an
unskilled type which has a technical
component and although he suggested to Van Blerk that he wanted to be
a draftsman, he neither
had the ability, motivation or concentration
to qualify for such a high level of skill. She also felt he would
not be able to
cope with the level of function required.
7.23. There was some debate about the
confidentiality and resultant applicability of the PE Corporate
Survey, she however gave evidence
that the survey was conducted on a
selection of 800 companies, twice a year, and although it was
confidential, it was available
to industrial psychologists. She felt
that it was more accurate than the generic or widely used Robert Koch
scale. She gave evidence
that Robert Koch was a survey based on
statistical data, compiled in 2000 and updated annually for
inflation. Thus, although it
is widely used, it was not as accurate
or as relevant as the PE Corporate survey which is based on current
scientific data.
7.24. She also gave evidence that the
Robert Koch survey portion used by Van Blerk was in respect of the
informal labour market,
whereas the PE Corporate survey was in
respect of the corporate market and after the accident, it was
unlikely that the Plaintiff
would obtain employment in the corporate
sector.
8. The Plaintiff then called Dr Naidoo,
whose expertise was not in dispute and he confirmed his report and
the joint minute. He
then commenced giving evidence that as a
consequence of the accident and the fact that the Plaintiff’s
functionality had
been impaired for over 4 years, this had a limited
effect on his mental state and the treatment suggested by Bubb would
no longer
assist the Plaintiff.
8.1. There was an objection to his
evidence as this was not contained in his report. After hearing
argument as to the objection,
I provisionally allowed the Plaintiff
to continue leading the evidence.
8.2. Adams, on behalf of the Defendant,
effectively cross-examined Naidoo, pointing out that his suggestion
in his report and recommendation
that the Plaintiff undergo treatment
was contrary to his evidence that he not feel that treatment would
assist the Plaintiff.
I am inclined to agree with Adams in this
regard.
8.3. The other difficulty is that
Naidoo attempted to explain this contradiction by the fact that at
the time, he had not understood
that the Plaintiff’s injury to
his knee was permanent. However, that is not an answer to his
contradiction. At the time
he had interviewed and assessed the
Plaintiff, the Plaintiff had been injured for approximately 4 years,
suffered from depression,
pain, PTSD and emotional trauma thus all
the consequences had been evident for some time, as did the
Plaintiff’s attitude
that he would not accept treatment.
Consequently, in my view, Naidoo’s evidence in the witness box
was unhelpful. This
does not of course effect the joint minute or
the extent to which his report was admitted.
9. The Plaintiff’s evidence was
then interrupted as Adams informed me that Van Blerk was not
available to give evidence on
the Friday.
10. The Defendant then led the evidence
of Van Blerk. He gave extensive evidence in a firm demeanour, but
his evidence was mostly
of a general nature and not specific to the
Plaintiff’s circumstances. In all, he was unconvincing.
10.1. Van Blerk, however, agreed that
the Plaintiff’s potential career path pre-accident was to be an
artisan, welder or boilermaker
and that it was unlikely for him to
have become an underwater welder.
10.2. He gave evidence of various tests
which he adopted in an attempt to support his contention that the
Plaintiff had the ability
to become a draftsman, however, he was
adamant that the Plaintiff would only find employment in the
non-corporate or informal sector.
10.3. In regard to his definition of
non-corporate, he stated he meant small corporations such as close
corporations.
10.4. He seemed to place an unwarranted
weight on the fact that up to the age of 15, all the Plaintiff had
wanted to do was play
sport.
10.5. He agreed, however, that now the
Plaintiff would not become an artisan, but stated that the Plaintiff
could be a draftsman
if he was motivated, focused and determined.
10.6. This seemed, in my view, to
disregard the evidence of the experts reports who all tended to agree
that the Plaintiff suffered
from a lack of motivation, a lack of
interest in a career path, depression and trauma all of which would
interfere with his ability
to obtain further qualification.
10.7. In cross-examination, Van Blerk
conceded that there was a high probability that the Plaintiff would
qualify as an artisan.
When he was questioned on his opinion that
the Plaintiff would become a draftsman, he immediately stated that
this was not his
opinion, but that it was something which the
Plaintiff had stated he wanted to do. This seemed to contradict his
report in which
he stated it was his (Van Blerk’s) evidence and
opinion that the Plaintiff could become a draftsman. He conceded
that if
the Plaintiff decided to become a draftsman, his motivation
would be an obstacle. He also conceded that in the main, the tests
that he applied were used on apprentices namely artisans and he
conceded that an draftsman was in fact not an apprentice.
10.8. It seems to me that as a result,
Van Blerk, on the basis of his tests, could not conclude that the
Plaintiff had the ability
to qualify as a draftsman.
10.9. Then Van Blerk’s evidence
became even more remarkable. He conceded that he based his opinion
on internet searches,
but did not recognise during cross-examination,
any of the internet sites which were thereafter pointed out to him,
were referred
to in his report. This must raise a question mark in
regard to the value of his report.
10.10. Furthermore, in
cross-examination, he stated that he believed that the Kochs figures
were of greater value than the PE Corporate
survey, but he did not
know when Robert Koch had last conducted a survey. He was of the
view that Koch’s survey, which he
used, included small
registered companies. When it was drawn to his attention that Koch
himself, in his book, states that the
figures on which Van Blerk
relied related to the informal sector, being businesses which were
not registered in any way, Van Blerk
seemed to be surprised.
10.11. Van Blerk also conceded in
cross-examination that 65 was a more realistic retirement age as he
said “not only do people
live longer but work longer and were
healthier in today’s environment”.
10.12. With a low level matric, he
stated that the Plaintiff would have difficulty finding any
employment. In fact, he seemed to
state categorically that without
further qualification, the Plaintiff would not achieve any
employment. He also then accepted
Roets’ evidence in respect
of the payment of apprentices.
11. After Van Blerk’s evidence,
the Defendant recorded that it admitted the Plaintiff’s
calculations as set out in the
actuarial report on page 111.
12. Thereafter, both the Plaintiff and
Defendant closed their cases.
13. On the second day of trial:
13.1. the Defendant handed in an
actuarial calculation and the calculations aspect thereof was
accepted by the Plaintiff;
13.2. it was also recorded that in
respect of past medical expenses, that it was not in dispute that the
expenses were incurred.
14. In respect of whether the Plaintiff
would have entered the corporate or informal sector, it seems to me
that in truth both the
Plaintiff’s witnesses and Van Blerk
agree that before the accident the Plaintiff would have entered the
corporate sector.
Van Blerk simply misunderstood what the corporate
sector was.
15. There was nothing to dispute Roets’
evidence that welders and boilermakers were in the 100 most scarce
professions and
consequently, on the probabilities, I find that the
Plaintiff would have entered the corporate sector as an artisan,
boilermaker
or welder and would have achieved his qualifications
three years after matric, reaching his earning ceiling at 45. It was
also
common cause that he would retire at the age of 65.
16. In regard the post-morbid position,
I accept the evidence of the Plaintiff’s witness that he would
only receive a low
level matric and that his injuries and
consequences of the accident, meant that his motivation,
concentration, PTSD, depression
and pain will prevent him from
obtaining any further qualification. This, together with his
orthopaedic injuries, and persistent
pain meant that not only was his
prognosis not positive, but that he would have to undergo a knee
replacement and would be precluded
from doing usual artisan work.
17. I accept the uninjured earnings, in
respect of his progression, set out by Whittaker, namely that:
17.1. he would have completed grade 12
by the end of 2013;
17.2. he would have entered temporary
contract employment on the 1st of January 2014, and his earnings have
increased in line with
inflation until December 2015;
17.3. on the 1st of January 2016, he
would have progressed to the median guaranteed package of apprentice
1 earning R85 000.00 per
annum, a year later, as apprentice 2, he
would earn R126 000.00 per annum;
17.4. a year later, as apprentice 3, he
would earn R131 000.00 per annum;
17.5. a year later he would have
progressed to the average lower quartile guaranteed package for
welders and boilermakers, earning
R267 000.00 per annum;
17.6. at the age of 45 who attain a
career ceiling R307 000.00 per annum.
18. The injured earnings progression I
again accept the report of Whittaker who states that the Plaintiff
would:
18.1. obtain a low level matric at the
end of 2015 and enter employment on the 1st of January 2015, at which
stage he would be an
unskilled worker earning R12 100.00 per annum;
18.2. after 4 years he would progress
to the median wage for unskilled workers in a non-corporate sector
earning R17 400.00 per
annum;
18.3. on the 1st of January 2020 he
would progress to a higher than median wage earning R20 000.00 per
annum;
18.4. after 5 years, he would progress
to the average of the median and the upper quarter for unskilled
workers in the non-corporate
sector and earn R33 700.00 per annum;
18.5. at the age of 50, he would reach
his ceiling of R88 750.00 per annum.
19. It seems also to be common ground
that Roets’ assessment of his post-morbid earning capacity
could be accepted, although
Van Blerk did contend that he would not
earn any monthly income at all. It was also agreed in the joint
minutes that he would
suffer one year past loss of earnings.
Consequently, his past loss of earnings should be calculated at R23
434.00 less a contingency
of 5%, leaving the total of R22 262.00.
20. The Plaintiff then contended that
in respect of future loss of earnings, and taking into account the
evidence of Roets and Bubb,
he would have earned R5 775 146.00 less a
contingency deduction of 20%.
21. The contingency was agreed between
the parties. This leaves his estimated value of income, uninjured,
at R4 620 116.80.
22. The value of his income as injured
I accepted to be R1 295 216.00, less a contingency of 30% (which was
agreed between the parties),
leaving an amount of R906 651.00.
Consequently his total net loss amounted to R3 735 727.80.
23. To this amount must be added
general damages of R250 000.00 and past medical expenses of R20
545.00, leaving a total capital
claim of R4 006 273.60.
24. In light of the above, I make the
following order:
24.1. The Defendant shall pay the sum
of R3 735 727.80 (Three million Seven Hundred and Thirty Five
Thousand, Seven Hundred and
Twenty Seven Rand and Eighty Cents) to
the trust account of the Plaintiff’s attorneys, Erasmus de
Klerk, in settlement of
the Plaintiff’s loss of earnings /
earning capacity to be held in trust on behalf of the Plaintiff;
24.2. The Defendant shall pay the sum
of R250 000.00 (Two Hundred and Fifty Thousand Rand) to the
Plaintiff’s attorneys, Erasmus
de Klerk, in settlement of the
Plaintiff’s claim for general damages to be held in trust, on
behalf of the Plaintiff.
24.3. The Defendant shall pay the
Plaintiff’s past Hospital and Medical expenses in an amount of
R20 545.86 to the Plaintiff.
24.4. All amounts payable to the
Plaintiff shall be paid by direct transfer into the Plaintiff’s
attorneys’ trust account,
to be held on behalf of the
Plaintiff, details of which are as follows:
ERASMUS DE KERLK INC
ABSA Bank
Account number: [4…………..]
Branch number: [6……………]
Rosebank
Ref.: J Erasmus/FERDINAND UJDUR
24.5. The capital amount payable by the
Defendant will bear interest at the rate of 9% per annum calculated
from and including the
15 (FIFTEENTH) calendar day after the date of
this Order to and including the date of payment thereof.
24.6. The Defendant shall provide the
Plaintiff with an Undertaking as envisaged in Section 17 (4) (a) of
Act 56 of 1996, 100% for
the costs of the future accommodation of the
Plaintiff in a hospital or nursing home and such treatment, services
or goods as the
Plaintiff may require as a result of the injuries
that the Plaintiff sustained as a result of the accident which
occurred on 16
October 2010, as set out in the medico legal reports
obtained on behalf of the Plaintiff, after such costs have been
incurred and
upon proof thereof, which costs shall include:
24.6.1. The agreed or taxed cost to be
incurred in the establishment of a trust to inter alia protect,
administer and/or manage
the capital amount and the proceeds thereof
referred to above;
24.6.2. The costs of the trustee in
administering the capital amount referred to in paragraph 1 supra as
determined by the Administration
of Estates Act, Act 66 of 1965 (as
amended), according to the prescribed tariff applicable to curators
as reflected in the Government
Gazette Notice R1602 of 1 July 1991,
and in particular paragraphs 3(a) and 3(b) of the Schedule thereto;
24.6.3. The costs of the furnishing of
annual security in terms of section 77 of the Administration of
Estates Act, Act 687 of 1965
(as amended).
24.7. The Defendant must make payment
of the Plaintiff’s taxed or agreed party and party costs on the
High Court scale, including
costs of senior-junior counsel and the
following:-
24.7.1. All the cost of obtaining all
medico legal/expert and actuarial reports from the Plaintiff experts
which were furnished
to the Defendant;
24.7.2. The reasonable taxable
preparation and reservation fees, if any, of the following experts
of whom notice have been given,
being:-
24.7.2.1. Dr Irsigler (RAF 4)
24.7.2.2. Dr. C. Barlin (Orthopaedic
Surgeon);
24.7.2.3. Dr. M. Naidoo (Psychiatrist)
;
24.7.2.4. Eleanor Bubb (Educational
Psychologist);
24.7.2.5. Alison Crosbie Inc –
Jeanne Morland (Occupational Therapist);
24.7.2.6. Lisa Roets (Industrual
Psychologist);
24.7.2.7. G.A. Wittaker (Actuary).
24.8. The above costs will also be paid
into the aforementioned trust account.
24.9. The following provisions will
apply with regards to the determination of the aforementioned taxed
or agreed costs:-
24.9.1. The Plaintiff shall serve the
notice of taxation on the Defendant’s attorney of record;
24.9.2. The Plaintiff shall allow the
Defendant 7 (SEVEN) court days to make payment of the taxed costs
from date of settlement
or taxation thereof;
24.9.3. Should payment not be effected
timeously, Plaintiff will be entitled to recover interest at the rate
of 9% on the taxed
or agreed costs from date of allocator to date of
final payment.
P L CARSTENSEN
ACTING JUDGE OF THE
HIGH COURT
HEARD: 7 OCTOBER 2014
DELIVERED: 16 OCTOBER 2014
COUNSEL FOR PLAINTIFF: ADV. D.
COMBRINK
INSTRUCTED BY: ERASMUS DE KLERK INC.
REF: MS Z. GERBER
COUNSEL FOR DEFENDANT: ADV. ADAMS
INSTRUCTED BY: MAYAT NURICK LANGA
INC.
REF: MR S TIMBER